Constable G. N. Boshold v. Ontario Provincial Police, 1986 CanLII 4298

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF the Police Act, K.S.O., 1980, c. 381, and Amendments thereto and Regulations thereunder;

• and –

IN THE MATTER OF an Appeal to the Ontario Police Commission by:

CONSTABLE G. N. BOSHOLD #3878 Appellant

-and-

ONTARIO PROVINCIAL POLICE Respondent

DECISION

Panel: John P. MacBeth, Esq., Q.C., Vice Chairman David G. Stewart, Esq., Q.C., Member F. Jennifer Lynch, Member

Hearing Date: Tuesday, January 28th, 1986 Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, Ontario M7A 2T3 Tel: 416-314-3004 Fax: 416-314-0198 Website: www.ocpc.ca

John P. MacBeth, Q.C., Vice Chairman

1This is an appeal by Constable G. N. Boshold from the penalty imposed upon him of the forfeiture of five days 'pay following his conviction on a charge of discreditable conduct contrary to Section 1 (a)(i) of the Code of Offences contained in Regulation 791 of the Police Act.

2The original hearing was before Staff Superintendent H.T. Carry with the decision dated the 18th September, 1985. The decision was confirmed by Commissioner R.A. Ferguson under date of 24th September, 1985.

3The charge arose from an altercation between Brock Stephens and three off duty members of the Ontario Provincial Police. They were in civilian clothing. The appellant was one of the three members.

4The appellant and his two fellow officers had been in attendance at a tavern in Owen Sound where they met a young woman, Deborah Fisher. She invited them to accompany her to her residence after leaving the tavern. The three accepted the invitation.

5While they were waiting for Deborah Fisher to find her key and open the door they were suddenly confronted by Brock Stephens, a friend of Fisher, and one with whom she shared her residence from time to time. Evidence was that Stephens and Fisher had engaged in a row the previous afternoon and Stephens had indicated that he was once more leaving. Evidence was also to the effect that Stephens shared the rent with Fisher.

6A fight ensued. As in any such situation the evidence of what happened and in what order is confused. It does appear that at one point Stephens was held on the veranda by all three O.P.P. officers, he subsequently ended on the ground and in the course of the scuffle received an injury to his eye.

7The commotion attracted others to the location including Stephens' brother. Stephens was urged to leave the scene and retreated across the street to his brother's residence.

8At this point considerable verbal abuse was exchanged back and forth across the street between Stephens and Boshold.

9When the Owen Sound Police arrived on the scene, in response to a citizen's call, Stephens again returned across the street and attacked Boshold. This led to a scuffle between members of both Forces in which at one point a member from each Force were wrestling together on the ground. The Owen Sound Police made light of the encounter, but this does not erase the image left with those who saw or subsequently learned of it.

10The appeal was based on a number of grounds amongst them that the appellant did not provoke or instigate the disturbance and acted only in self defence or in an effort to protect Deborah Fisher. Counsel for the appellant also made the same point concerning involvement with members of the Owen Sound Force and that the encounter was brief and accidental. He also contended that the Staff Superintendent had failed to take into account the long standing and unblemished record of the appellant.

11We have considered the presentations of both counsel for the appellant and respondent and find that no argument was advanced which convinced us that the Trial Office had wrongly assessed the evidence or that he had imposed a penalty which was unfair or harsh in view of the circumstances.

12This appeal by Constable Boshold against the penalty imposed is therefore dismissed.